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Posted By USFN, Wednesday, April 30, 2014
Updated: Monday, October 12, 2015

April 30, 214


by Kent E. Altom & Greg S. Krivo
McCalla Raymer, LLC
USFN Member (Georgia)

When it to comes to an eviction, time is the currency. As lender’s counsel, one cannot obtain possession of the property fast enough for a client. The foreclosed borrower’s objective is to remain in the property as long as possible and, more specifically, to do so without having to make any payments to the lender or into the court’s registry. Foreclosed borrowers, with or without assistance of counsel, are always seeking novel ways to protract dispossessory actions. Discussed here are a few tactics being utilized by foreclosed borrowers in this state to cause delay, as well as some pointers on how to overcome these obstacles.

The Phantom Appeal
— A defendant in Georgia has seven days to appeal a final order and writ of possession. (See O.C.G.A. § 44-7-56.) To comply, a defendant must file a notice of appeal with the lower court that entered the order/writ. Upon filing the “appeal,” the defendant is provided a cost bill requiring the defendant to pay the costs to have the transcript transferred to the superior court. If the defendant fails to make this payment, the lower court will not transfer the matter, and the superior court will have no knowledge of the appeal. The “appeal” remains in limbo, and a lender cannot execute the writ of possession. If the sheriff were to arrive at the property to execute the writ, the defendant would need only present the notice of appeal to forestall the eviction. To avoid costly or indefinite delays, lender’s counsel should obtain a copy of the cost bill provided to the defendant and calendar the time in which the defendant has to pay that bill, plus three days for mailing, and then contact the superior court and inquire as to whether payment was made. If there was no payment, a motion to dismiss the appeal pursuant to O.C.G.A. § 5-6-48 should be filed promptly, which requires payment within 20 days. It is best practice to include a proposed order. Lastly, it is imperative to follow-up with the judge’s staff because it is not likely that the superior court will consider the matter or set it for hearing. The lower court, having already adjudicated the matter, is unlikely to proceed further without a request from lender’s counsel.

The Direct Appeal — Here, too, the objective of litigious defendants is to prolong the dispossessory process for as long as possible. This often leads to continuous appeals, moving from one judicial venue to the next — often without any meritorious claim to the property. Defendants in Georgia have seven days to appeal a final order and writ of possession. (See O.C.G.A. § 44-7-56.) If the defendant’s appeal to the superior court is unsuccessful, he cannot appeal directly to the court of appeals; instead, the defendant must seek a discretionary appeal. (O.C.G.A. § 5-6-35(a)(11) “[A]ppeals from decisions of the superior courts reviewing decisions of … lower courts by certiorari or de novo proceedings … shall be by application for discretionary appeal.”) Pro se defendants and defendants’ attorneys unfamiliar with dispossessory actions will often attempt to lodge a direct appeal to the court of appeals. Unfortunately, O.C.G.A. § 5-6-48 does not empower the superior court to dismiss this improper appeal. A response to the direct appeal should be immediately filed with the court of appeals citing O.C.G.A. § 5-6-35(a)(11). Thereafter, the court of appeals should deny the direct appeal, allowing a lender to proceed with execution of the writ of possession.

The Default Order — It is common that a defendant in a dispossessory proceeding will fail to appear at the hearing. When this happens, assuming everything was properly filed, the evicting party is entitled to a final order and writ of possession. An issue arises when a defendant attempts to appeal this magistrate court’s ruling. In Georgia, the defendant cannot appeal a default judgment and review can only be made by certiorari to the state/superior court of that county (O.C.G.A. § 15-10-41(b)(2)). Accordingly, the court to which the defendant appealed lacks jurisdiction to consider the appeal. Even if the defendant files a petition for writ of certiorari, the petition is often subject to denial as improper (O.C.G.A. §§ 5-4-1, et seq. sets forth the specific procedure for obtaining a writ of certiorari). O.C.G.A. § 5-4-3 lists several very specific requirements for properly filing a petition for writ of certiorari. For instance, the defendant is required to plainly and distinctly set forth errors alleged to have occurred at the magistrate court level. Additionally, the defendant is required to provide bond and good security as well as a certificate from the officer whose decision or judgment is the subject matter of complaint (O.C.G.A. § 5-4-5). Absent the bond and certificate, the court clerk cannot issue the writ of certiorari to the magistrate court to transfer the entire record of its proceeding for review. These provisions are mandatory, with the bond or certificate being a condition precedent to the filing of a defendant’s petition and failure to comply requires dismissal of the petition. [Calloway v. Georgia Real Estate Commission, 89 Ga. 823, 81 S.E.2d 540 (1954); see also Hartsfield Co. v. Luddy, 45 Ga. App. 507, 165 S.E.2d 452 (1932) (superior court acquires no jurisdiction of case where failure to comply with statute shown).] Further, a defendant must obtain a sanction of the court prior to filing a petition and, upon filing the petition with the court clerk, petitioner must obtain an endorsed sanction of the appropriate judge (O.C.G.A. § 5-4-3). Like the bond, absent the sanction of the judge, the clerk may not issue the writ of certiorari. [See Cobb County v. Herren, 230 Ga. App. 482, 496 S.E.2d 558 (1998) (“Viability of a petition for a writ of certiorari is also contingent upon the party obtaining the sanction of the appropriate judge ... Sanctioning is an integral part of the application for certiorari, and without it, the certiorari process cannot move forward”) (citations omitted.).] Any failure by a defendant to adhere to the requirements of filing a proper petition for writ of certiorari requires dismissal of the petition.

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Spring 2014 USFN Report

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